The FBI Going Dark Isn’t the Precedent, It’s the Surveillance State that’s New

| The Back Page

I will confess that my focus when thinking about the fight between the FBI and Apple has been almost entirely on the future. I've been thinking about a world where hackers, criminal organizations, and foreign governments have ever-greater access to my life through the Internet. This is true for all of us—every person, every company, every organization, and every governmental entity.

Surveillance during the Civil War

Civil War Surveillance by the Bad Guys

In my opinion (and the opinion of people far smarter and more knowledgable than me), protecting ourselves from criminal and foreign threats requires strong encryption, unbreakable encryption. This has the unfortunate side effect of similarly protecting criminals, terrorists, and foreign entities from our good guys.

That stinks, but as former CIA and NSA director General Michael Hayden says, the benefits and value of a protected U.S. outweighs the reality that law enforcement's job is made harder by we, the people, being stronger.

FBI Director James Comey is among those who don't see it that way. Mr. Comey and his allies have warned that the FBI was "going dark." More starkly, he has argued that the idea of something being warrant-proof was unprecedented, a compelling argument for government backdoors into encryption as long as you don't think too hard about it.

In some recent podcasts, I've argued that the FBI and our intelligence services have become lazy, which is honestly an unfair characterization. What I should have said is that they've become complacent, so used to a world where they can slurp up virtually all data that they are unwilling to think differently in the face of our need to protect our communications and data from criminals and foreign agents.

I have no empathy for that complacency, and I accept that with freedom comes risk to my person and to my loved ones.

But that's all forward thinking. What about the past? NPR did a fact-checking piece on some of Director Comey's claims. The piece rated Mr. Comey's claims 99.9 percent accurate, but the exceptions belie the claim that warrant-proof things are unprecedented.

It was a quote from Apple attorney Theodore Boutrous that helped me remember the past. Mr. Boutrous said:

For most of American history, there was a warrant-free zone regarding people's communication across the country. There weren't surveillance techniques. There weren't ways to capture what people were saying to each other. And so the government has become so used to having surveillance techniques, they forget this is a relatively new development.

That speaks to my feelings of complacency in those complaining about unbreakable iPhones. While the FBI and local law enforcement has heretofore had the ability to break into (almost) everything they wanted, they haven't had the ability to track our every move, hear or see almost every conversation we have, know everyone we know, and otherwise absorb this new and massive amount of our lives that now takes place on our devices.

These are indeed new developments in the relative scheme of things, and I, for one, am unwilling to make my digital world unnecessarily vulnerable to the bad guys for the sake of preserving this unprecedented state of surveillance ease.

It behooves all of us to keep arguments from both sides in this fight in their proper context, in context of the times, the repercussions, and what it will mean for all of us if mainstream encryption is made useless by backdoors.

Image courtesy of Shutterstock.

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Scott Siegling 2

Well said.


Pity the UK Government has fallen into exactly the same trap, how about getting of their collective butts and doing some proper surveillance.  Monitoring the innocent en masse is not a solution for finding the bad guys. 

Think I’ll start using cash again and writing letters.


Finding terrorists is akin to looking for a needle in a haystack.

When you’re doing that, “more hay” is not a help.


I think the time has come for every physical, electronic and digital lock in ‘Merica to be provided and installed by trusted government officials.  Everything from your daughter’s diary to Fort Knox to the front door of Director Comey’s personal residence.  The “Master Keys” will only be held by the manufacturer of said keys, safely away from anyone “bad”, and only to be handed out to the government or police when a warrant is issued.  That sounds perfectly reasonable and safe to me.

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